Chapter XXVIII: Part III: §§ 368-413 (2)

But if destruction of a captured enemy merchantman can as an exception be lawful, the question as to indemnities to be paid to the neutral owners of goods carried by the destroyed vessel requires attention. It seems to be obvious that, if the destruction of the vessel herself was lawful, and if it was not possible to remove her cargo, no indemnities need be paid. An illustrative case happened during the Franco-German War. On October 21, 1870, the French cruiser _Dessaix_ seized two German merchantmen, the _Ludwig_ and the _Vorwärts_, but burned them because she could not spare a prize crew to navigate the prizes into a French port. The neutral owners of part of the cargo claimed indemnities, but the French Conseil d'État refused to grant indemnities on the ground that the action of the captor was lawful.[393]

[Footnote 393: See Boeck, No. 146; Barboux, p. 153; Calvo, V. § 3033; Dupuis, No. 262; Hall, § 269. Should the International Prize Court at the Hague be established, article 3 of Convention XII. of the Second Peace Conference would enable the owners of neutral goods destroyed with the destroyed enemy merchantmen that carried them to bring the question as to whether they may claim damages before this Court.]

[Sidenote: Ransom of Prize.]

§ 195. Although prizes have as a rule to be brought before a Prize Court, International Law nevertheless does not forbid the ransoming of the captured vessel either directly after the capture or after she has been conducted to the port of a Prize Court, but before the Court has given its verdict. However, the practice of accepting and paying ransom, which grew up in the seventeenth century, is in many countries now prohibited by Municipal Law. Thus, for instance, Great Britain by section 45 of the Naval Prize Act, 1864, prohibits ransoming except in such cases as may be specially provided for by an Order of the King in Council.[394] Where ransom is accepted, a contract of ransom is entered into by the captor and the master of the captured vessel; the latter gives a so-called ransom bill to the former, in which he promises the amount of the ransom. He is given a copy of the ransom bill for the purpose of a safe-conduct to protect his vessel from again being captured, under the condition that he keeps the course to such port as is agreed upon in the ransom bill. To secure the payment of ransom, an officer of the captured vessel can be detained as hostage, otherwise the whole of the crew is to be liberated with the vessel, ransom being an equivalent for both the restoration of the prize and the release of her crew from captivity. So long as the ransom bill is not paid, the hostage can be kept in captivity. But it is exclusively a matter for the Municipal Law of the State concerned to determine whether or no the captor can sue upon the ransom bill, if the ransom is not voluntarily paid.[395] Should the capturing vessel, with the hostage or the ransom bill on board, be captured herself and thus become a prize of the enemy, the hostage is liberated, the ransom bill loses its effect, and need not be paid.[396]

[Footnote 394: Article 40 of the Naval Prize Bill of 1911 runs as follows:--

(1) His Majesty in Council may, in relation to any war, make such
orders as may seem expedient according to circumstances for
prohibiting or allowing, wholly or in certain cases or subject to
any conditions or regulations or otherwise as may from time to
time seem meet, the ransoming or the entering into any contract or
agreement for the ransoming of any ship or goods belonging to any
of His Majesty's subjects, and taken as prize by any of His
Majesty's enemies.

(2) Any contract or agreement entered into, and any bill, bond, or
other security given for ransom of any ship or goods, shall be
under the exclusive jurisdiction of the High Court as a Prize
Court (subject to appeal to the Supreme Prize Court) and if
entered into or given in contravention to any such Order in
Council shall be deemed to have been entered into or given for an
illegal consideration.

(3) If any person ransoms or enters into any contract or agreement
for ransoming any ship or goods, in contravention of any such
Order in Council, he shall for every such offence be liable to be
proceeded against in the High Court at the suit of His Majesty in
his office of Admiralty, and on conviction to be fined, in the
discretion of the Court, any sum not exceeding five hundred
pounds.]

[Footnote 395: See Hall, § 151, p. 479:--"The English Courts refuse to accept such arrangements (for ransom) from the effect of the rule that the character of an alien enemy carries with it a disability to sue, and compel payment of the debt indirectly through an action brought by the imprisoned hostage for the recovery of his freedom." The American Courts, in contradistinction to the British, recognise ransom bills. See on the one hand, the case of _Cornu_ v. _Blackburne_ (1781), 2 Douglas, 640, _Anthon_ v. _Fisher_ (1782), 2 Douglas, 649 note, the _Hoop_, 1 C. Rob. 201; and, on the other, _Goodrich_ and _De Forest_ v. _Gordon_ (1818), 15 Johnson, 6.]

[Footnote 396: The matter of ransom is treated with great lucidity by Twiss, II. §§ 180-183; Boeck, Nos. 257-267; Dupuis, Nos. 269-277.]

[Sidenote: Loss of Prize, especially Recapture.]

§ 196. A prize is lost--(1) when the captor intentionally abandons her, (2) when she escapes through being rescued by her own crew, or (3) when she is recaptured. Just as through capture the prize becomes, according to International Law, the property of the belligerent whose forces made the capture, provided a Prize Court confirms the capture, so such property is lost when the prize vessel becomes abandoned, or escapes, or is recaptured. And it seems to be obvious, and everywhere recognised by Municipal Law, that as soon as a captured enemy merchantman succeeds in escaping, the proprietorship of the former owners revives _ipso facto_. But the case is different when a captured vessel, whose crew has been taken on board the capturing vessel, is abandoned and afterwards met and taken possession of by a neutral vessel or by a vessel of her home State. It is certainly not for International Law to determine whether or not the original proprietorship revives through abandonment. This is a matter for Municipal Law. The case of recapture is different from escape. Here too Municipal Law has to determine whether or no the former proprietorship revives, since International Law lays down the rule only that recapture takes the vessel out of the property of the enemy and brings her into the property of the belligerent whose forces made the recapture. Municipal Law of the individual States has settled the matter in different ways. Thus, Great Britain, by section 40 of the Naval Prize Act, 1864, enacted that the recaptured vessel, except when she has been used by the captor as a ship of war, shall be restored to her former owner on his paying one-eighth to one-fourth, as the Prize Court may award, of her value as prize salvage, no matter if the recapture was made before or after the enemy Prize Court had confirmed the capture.[397] Other States restore a recaptured vessel only when the recapture was made within twenty-four hours[398] after the capture occurred, or before the captured vessel was conducted into an enemy port, or before she was condemned by an enemy Prize Court.

[Footnote 397: Article 30 of the Naval Prize Bill introduced in 1911 simply enacts that British merchantmen or goods captured by the enemy and recaptured by a British man-of-war shall be restored to the owner by a decree of the Prize Court.]

[Footnote 398: So, for instance, France; see Dupuis, Nos. 278-279.]

[Sidenote: Fate of Prize.]

§ 197. Through being captured and afterwards condemned by a Prize Court, a captured enemy vessel and captured enemy goods become the property of the belligerent whose forces made the capture. What becomes of the prize after the condemnation is not for International, but for Municipal Law to determine. A belligerent can hand the prize over to the officers and crew who made the capture, or can keep her altogether for himself, or can give a share to those who made the capture. As a rule, prizes are sold after they are condemned, and the whole or a part of the net proceeds is distributed among the officers and crew who made the capture. For Great Britain this distribution is regulated by the "Royal Proclamation as to Distribution of Prize Money" of August 3, 1886.[399] There is no doubt whatever that, if a neutral subject buys a captured ship after her condemnation, she may not be attacked and captured by the belligerent to whose subject she formerly belonged, although, if she is bought by an enemy subject and afterwards captured, she might be restored[400] to her former owner.

[Footnote 399: See Holland, _Prize Law_, pp. 142-150.]

[Footnote 400: See above, § 196.]

[Sidenote: Vessels belonging to Subjects of Neutral States, but sailing under Enemy Flag.]

§ 198. It has been already stated above in § 89 that merchantmen owned by subjects of neutral States but sailing under enemy flag are vested with enemy character. It is, therefore, evident that they may be captured and condemned. As at present no non-littoral State has a maritime flag, vessels belonging to subjects of such States are forced to navigate under the flag of another State,[401] and they are, therefore, in case of war exposed to capture.

[Footnote 401: See above, vol. I. § 261.]

[Sidenote: Effect of Sale of Enemy Vessels during War.]

§ 199. Since enemy vessels are liable to capture, the question must be taken into consideration whether the fact that an enemy vessel has been sold during the war to a subject of a neutral or to a subject of the belligerent State whose forces seized her, has the effect of excluding her appropriation. It is obvious that, if the question is answered in the affirmative, the owners of enemy vessels can evade the danger of having their property captured by selling their vessels. The question of transfer of enemy vessels must, therefore, be regarded as forming part of the larger questions of enemy character and has consequently been treated in detail above, § 91.

[Sidenote: Goods sold by and to Enemy Subjects during War.]

§ 200. If a captured enemy vessel carries goods consigned by enemy subjects to subjects of neutral States, or to subjects of the belligerent whose forces captured the vessel, they may not be appropriated, provided the consignee can prove that he is the owner. As regards such goods found on captured enemy merchantmen as are consigned to enemy subjects but have been sold _in transitu_ to subjects of neutral States, no unanimous practice of the different States is in existence. The subject of goods sold _in transitu_ must--in the same way as the question of transfer of enemy vessels--be considered as forming part of the larger question of enemy character. It has, for this reason, been treated above, § 92.

IV

VIOLENCE AGAINST ENEMY PERSONS

See the literature quoted above at the commencement of § 107. See
also Bonfils, Nos. 1273-1273'3.

[Sidenote: Violence against Combatants.]

§ 201. As regards killing and wounding combatants in sea warfare and the means used for the purpose, customary rules of International Law are in existence according to which only those combatants may be killed or wounded who are able and willing to fight or who resist capture. Men disabled by sickness or wounds, or such men as lay down arms and surrender or do not resist capture, must be given quarter, except in a case of imperative necessity or of reprisals. Poison, and such arms, projectiles, and materials as cause unnecessary injury, are prohibited, as is also killing and wounding in a treacherous way.[402] The Declaration of St. Petersburg[403] and the Hague Declaration prohibiting the use of expanding (Dum-Dum)[404] bullets, apply to sea warfare as well as to land warfare, as also do the Hague Declarations concerning projectiles and explosives launched from balloons, and projectiles diffusing asphyxiating or deleterious gases.[405]

[Footnote 402: See the corresponding rules for warfare on land, which are discussed above in §§ 108-110. See also U.S. Naval War Code, article 3.]

[Footnote 403: See above,§ 111.]

[Footnote 404: See above, § 112.]

[Footnote 405: See above, §§ 113 and 114.]

All combatants, and also all officers and members of the crews of captured merchantmen, could formerly[406] be made prisoners of war. According to articles 5 to 7 of Convention XI. of the Second Peace Conference--see above in § 85--such members of the crews as are subjects of neutral States may never be made prisoners of war; but the captain, officers, and members of the crews who are enemy subjects, and, further, the captain and officers who are subjects of neutral States may be made prisoners of war in case they refuse to be released on parole. As soon as such prisoners are landed, their treatment falls under articles 4-20 of the Hague Regulations; but as long as they are on board, the old customary rule of International Law, that prisoners must be treated humanely,[407] and not like convicts, must be complied with. The Hague Convention for the adaptation of the Geneva Convention to sea warfare enacts, however, some particular rules concerning the shipwrecked, the wounded, and the sick who, through falling into the hands of the enemy, become prisoners of war.[408]

[Footnote 406: This was almost generally recognised, but was refused recognition by Count Bismarck during the Franco-German War (see below, § 249) and by some German publicists, as, for instance, Lueder in Holtzendorff, IV. p. 479, note 6.]

[Footnote 407: See Holland, _Prize Law_, § 249, and U.S. Naval War Code, articles 10, 11.]

[Footnote 408: See below, § 205.]

[Sidenote: Violence against Non-combatant Members of Naval Forces.]

§ 202. Just as military forces consist of combatants and non-combatants, so do the naval forces of belligerents. Non-combatants, as, for instance, stokers, surgeons, chaplains, members of the hospital staff, and the like, who do not take part in the fighting, may not be attacked directly and killed or wounded.[409] But they are exposed to all injuries indirectly resulting from attacks on or by their vessels. And they may certainly be made prisoners of war, with the exception of members of the religious, medical, and hospital staff, who are inviolable according to article 10 of the Hague Convention for the adaptation to maritime warfare of the principles of the Geneva Convention.[410]

[Footnote 409: See U.S. Naval War Code, article 3.]

[Footnote 410: See below, § 209.]

[Sidenote: Violence against Enemy Individuals not belonging to the Naval Forces.]

§ 203. Since and so far as enemy individuals on board an attacked or seized enemy vessel who do not belong to the naval forces do not take part in the fighting, they may not directly be attacked and killed or wounded, although they are exposed to all injury indirectly resulting from an attack on or by their vessel. If they are mere private individuals, they may as an exception only and under the same circumstances as private individuals on occupied territory be made prisoners of war.[411] But they are nevertheless, for the time they are on board the captured vessel, under the discipline of the captor. All restrictive measures against them which are necessary are therefore lawful, as are also punishments, in case they do not comply with lawful orders of the commanding officer. If they are enemy officials in important positions,[412] they may be made prisoners of war.

[Footnote 411: See U.S. Naval War Code, article 11, and above, § 116.]

[Footnote 412: See above, § 117.]

V

TREATMENT OF WOUNDED AND SHIPWRECKED

Perels, § 37--Pillet, pp. 188-191--Westlake, II. pp.
275-280--Moore, VII. § 1178--Bernsten, § 12--Bonfils, Nos.
1280-1280'9--Pradier-Fodéré, VIII. No. 3209--U.S. Naval War Code,
articles 21-29--Ferguson, _The Red Cross Alliance at Sea_
(1871)--Houette, _De l'extension des principes de la Convention de
Genève aux victimes des guerres maritimes_ (1892)--Cauwès,
_L'extension des principes de la Convention de Genève aux guerres
maritimes_ (1899)--Holls, _The Peace Conference at the Hague_
(1900), pp. 120-132--Boidin, pp. 248-262--Dupuis, _Guerre_, Nos.
82-105--Meurer, II. §§ 74-87--Higgins, pp. 382-394--Lémonon, pp.
526-554--Nippold, II. § 33--Scott, _Conferences_, pp.
599-614--Takahashi, pp. 375-385--Fauchille in _R.G._ VI. (1899),
pp. 291-302--Bayer, in _R.G._ VIII. (1901), pp. 225-230--Renault
in _A.J._ II. pp. 295-306--Higgins, _War and the Private Citizen_
(1912), pp. 73-90, and in _The Law Quarterly Review_, XXVI (1910),
pp. 408-414. See also the literature quoted above at the
commencement of § 118.

[Sidenote: Adaptation of Geneva Convention to Sea Warfare.]

§ 204. Soon after the ratification of the Geneva Convention the necessity of adapting its principles to naval warfare was generally recognised, and among the non-ratified Additional articles to the Geneva Convention of 1868 were nine which aimed at such an adaptation. But it was not until the Hague Peace Conference in 1899 that an adaptation came into legal existence. This adaptation was contained in the "Convention[413] for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864," which comprised fourteen articles. It has, however, been replaced by the "Convention (X.) for the Adaptation of the Principles of the Geneva Convention to Maritime War," of the Second Hague Peace Conference. This new convention comprises twenty-eight articles and was signed, although with some reservations, by all the Powers represented at the Conference, except Nicaragua which acceded later, and it has already been ratified by most of the signatory Powers. It provides rules concerning the wounded, sick, shipwrecked, and dead; hospital ships; sickbays on men-of-war; the distinctive colour and emblem of hospital ships; neutral vessels taking on board belligerent wounded, sick, or shipwrecked; the religious, medical, and hospital staff of captured ships; the carrying out of the convention, and the prevention of abuses and infractions.

[Footnote 413: Martens, _N.R.G._ 2nd Ser. XXVI. p. 979.]

[Sidenote: The Wounded, Sick, and Shipwrecked.]

§ 205. Soldiers, sailors, and other persons officially attached to fleets or armies, whatever their nationality, who are taken on board when sick or wounded, must be respected and tended by the captors (article 11). All enemy shipwrecked, sick, or wounded who fall into the power of a belligerent are prisoners of war. It is left to the captor to determine whether they are to be kept on board, or to be sent to a port of his own country, or a neutral port, or even a hostile port; and in the last case such repatriated prisoners must be prevented by their Government from again serving in the war (article 14). The shipwrecked, wounded, or sick, who are landed at a neutral port with the consent of the local authorities, must, unless there is an arrangement to the contrary between the neutral State concerned and the belligerent States, be guarded by the neutral State so as to prevent them from again taking part in the war;[414] the expenses of tending and interning them must be borne by the State to whom they belong (article 15). After each engagement, both belligerents must, so far as military interests permit, take measures to search for the shipwrecked, wounded, and sick, and to ensure them protection against pillage and maltreatment (article 16). Each belligerent must, as early as possible, send to the authorities of their country, navy, or army, a list of the names of the sick and wounded picked up by him; and the belligerents must keep each other informed as to internments and transfers as well as to admissions into hospital and deaths which have occurred amongst the sick and wounded in their hands. And they must collect all objects of personal use, valuables, letters, &c., that are found in the captured ships in order to have them forwarded to the persons concerned by the authorities of their own country (article 17).

[Footnote 414: See below, § 348_a_.]

[Sidenote: Treatment of the Dead.]

§ 205_a_. After each engagement both belligerents must, so far as military interests permit, take measures to ensure the dead protection against pillage and maltreatment, and they must see that the burial, whether by land or sea, or cremation of the dead is preceded by a careful examination of the corpses in order to determine that life is really extinct (article 16). Each belligerent must, as early as possible, send to the authorities of their country, navy, or army, the military identification marks or tokens found on the dead; they must also collect all the objects of personal use, valuables, letters, &c., which have been left by the wounded and sick who die in hospital, in order that they may be forwarded to the persons concerned by the authorities of their own country (article 17).

[Sidenote: Hospital Ships.]

§ 206. Three different kinds of hospital ships must be distinguished--namely, military hospital ships, hospital ships equipped by private individuals or relief societies of the belligerents, and hospital ships equipped by private neutral individuals and neutral relief societies.

(1) Military hospital ships (article 1) are ships constructed or assigned by States specially and solely for the purpose of assisting the wounded, sick, and shipwrecked. Their names must be communicated to the belligerents at the commencement of or during hostilities, and in any case before they are employed. They must be respected by the belligerents, they may not be captured while hostilities last, and they are not on the same footing as men-of-war during their stay in a neutral port.

(2) Hospital ships equipped wholly or in part at the cost of private individuals or officially recognised relief societies of the belligerents must be respected by either belligerent (article 2), and are exempt from capture, provided their home State has given them an official commission and has notified their names to the other belligerent at the commencement of or during hostilities, and in any case before they are employed. They must, further, be furnished with a certificate from the competent authorities declaring that they had been under the latter's control while fitting out and on final departure.

(3) Hospital ships, equipped wholly or in part at the cost of private individuals or officially recognised relief societies of neutral States (article 3), must likewise be respected, and are exempt from capture, provided that they are placed under the control of one of the belligerents, with the previous consent of their own Government and with the authorisation of the belligerent himself, and that the latter has notified their names to his adversary at the commencement of, or during, hostilities, and in any case before they are employed.

According to article 4 all military and other hospital ships must afford relief and assistance to the wounded, sick, and shipwrecked of either belligerent. The respective Governments are prohibited from using these ships for any military purpose. The commanders of these vessels must not in any way hamper the movements of the combatants, and during and after an engagement they act at their own risk and peril. Both belligerents have a right to control and visit all military and other hospital ships, to refuse their assistance, to order them off, to make them take a certain course, to put a commissioner on board, and, lastly, to detain them temporarily, if important circumstances require this. In case a hospital ship receives orders from a belligerent, these orders must, as far as possible, be inscribed in the ship papers.

The protection to which hospital ships are entitled ceases if they are made use of to commit acts harmful to the enemy[415] (article 8). But the fact of the staff being armed for the purpose of maintaining order and defending the wounded and sick, and the fact of the presence of wireless telegraphic apparatus on board, are not sufficient reasons for withdrawing protection.

[Footnote 415: An interesting case of this kind occurred during the Russo-Japanese war. The _Aryol_ (also called the _Orel_), a hospital ship of the Russian Red Cross Society, was captured, and afterwards condemned by the Prize Court on the following grounds:--(_a_) For having communicated the orders of the commander-in-chief of the Russian squadron with which she was sailing to other Russian vessels; (_b_) for carrying, by order of the commander-in-chief of the squadron, in order to take them to Vladivostock, the master and some members of the crew of the British steamship _Oldhamia_, which had been captured by the Russians; (_c_) for having been instructed to purchase in Cape Town, or its neighbourhood, 11,000 ft. of conducting wire of good insulation; (_d_) for having navigated at the head of the squadron in the position usually occupied by reconnoitring vessels.--See Takahashi, pp. 620-625, and Higgins, _op. cit._ p. 74, and in _The Law Quarterly Review_, XXVI. (1910), p. 408.]

It must be specially observed that any man-of-war of either belligerent may, according to article 12, demand the surrender of the wounded, sick, or shipwrecked who are on board hospital ships of any kind. According to a reservation by Great Britain, article 12 is understood "to apply only to the case of combatants rescued during or after a naval engagement in which they have taken part."

[Sidenote: Hospital Ships in Neutral Ports.]

§ 206_a_. For the purpose of defining the status of hospital ships when entering neutral ports an International Conference met at the Hague in 1904, where Germany, Austria-Hungary, Belgium, China, Korea, Denmark, Spain, the United States of America, France, Greece, Guatemala, Italy, Japan, Luxemburg, Mexico, Holland, Persia, Portugal, Roumania, Russia, Servia, and Siam, were represented. Great Britain, however, did not take part. The following is the text of the six articles of the Convention signed by all the representatives:--

Article 1.--Hospital ships fulfilling the conditions prescribed in
articles 1, 2, and 3 of the Convention concluded at the Hague on
July 27, 1899, for the adaptation of the principles of the Geneva
Convention of August 22, 1864, to naval warfare shall in time of
war be exempt in the ports of the contracting parties from all
dues and taxes imposed on vessels for the benefit of the State.

Article 2.--The provision contained in the preceding article shall
not prevent the exercise of the right of search and other
formalities demanded by the fiscal and other laws in force in the
said ports.

Article 3.--The regulation laid down in article 1 is binding only
upon the contracting Powers in case of war between two or more of
themselves. The said rule shall cease to be obligatory as soon as
in a war between any of the contracting Powers a non-contracting
Power shall join one of the belligerents.

Article 4.--The present Convention, which bears date of this day
and may be signed up to October 1, 1905, by any Power which shall
have expressed a wish to do so, shall be ratified as speedily as
possible. The ratifications shall be deposited at the Hague. On
the deposit of the ratifications, a _procès-verbal_ shall be drawn
up, of which a certified copy shall be conveyed by diplomatic
channels, after the deposit of each ratification, to all the
contracting Powers.

Article 5.--Non-signatory Powers will be allowed to adhere to the
present convention after October 1, 1905. For that purpose they
will have to make known the fact of their adhesion to the
contracting Powers by means of a written notification addressed to
the Government of the Netherlands, which will be communicated by
that Government to all the other contracting Powers.

Article 6.--In the event of any of the high contracting parties
denouncing the present Convention, the denunciation shall only
take effect after notification has been made in writing to the
Government of the Netherlands and communicated by that Government
at once to all the other contracting Powers. Such denunciation
shall be effective only in respect of the Power which shall have
given notice of it.

[Sidenote: Sick-Bays.]

§ 206_b_. According to article 7, in case of a fight on board a man-of-war, the sick-bays must, as far as possible, be respected and spared. These sick-bays, and the material belonging to them, remain subject to the laws of war; they may not, however, be used for any purpose other than that for which they were originally intended so long as they are required for the wounded and sick. But should the military situation require it, a commander into whose power they have fallen may nevertheless apply them to other purposes, under the condition that he previously makes arrangements for proper accommodation for the wounded and sick on board. The protection to which sick-bays are entitled ceases if they are made use of to commit acts harmful to the enemy (article 8). But the fact that the staff of sick-bays is armed in order to defend the wounded and sick is not sufficient reason for withdrawing protection.

[Sidenote: Distinctive Colour and Emblem of Hospital Ships.]

§ 207. All military hospital ships must be painted white outside with a horizontal band of green about one metre and a half in breadth. Other hospital ships must also be painted white outside, but with a horizontal band of red. The boats and small craft of hospital ships used for hospital work must likewise be painted white. And besides being painted in this distinguishing colour, all military and other hospital ships (article 5) must hoist, together with their national flag, the white flag with a red cross stipulated by the Geneva Convention. If they belong to a neutral State, they must also fly at the main mast the national flag of the belligerent under whose control they are placed. Hospital ships which, under the terms of article 4, are detained by the enemy, must haul down the national flag of the belligerent to whom they belong. All hospital ships which wish to ensure by night the freedom from interference to which they are entitled, must, subject to the assent of the belligerent they are accompanying, take the necessary measures to render their special painting sufficiently plain. According to article 6 the distinguishing signs mentioned in article 5 may only be used, whether in time of peace or war, for protecting or indicating the ships therein mentioned.

Although in this connection the red cross is especially stipulated as the distinctive emblem, there is no objection to the use by non-Christian States, who object to the cross on religious grounds, of another emblem. Thus Turkey reserved the right to use a red crescent, and Persia to use a red sun.

[Sidenote: Neutral Vessels assisting the Wounded, Sick, or Shipwrecked.]

§ 208. A distinction must be made between neutral men-of-war and private vessels assisting the sick, wounded, and shipwrecked.

(1) If men-of-war take on board wounded, sick, or shipwrecked persons, precaution must be taken, so far as possible, that they do not again take part in the operations of war (article 13). Such individuals must not, however, be handed over to the adversary but must be detained till the end of the war.[416]

(2) Neutral merchantmen,[417] yachts, or boats which have of their own accord rescued sick, wounded, or shipwrecked men, or who have taken such men on board at the appeal of the belligerent, must, according to article 9, enjoy special protection and certain immunities. In no case may they be captured for the sole reason of having such persons on board. But, subject to any undertaking that may have been given to them, they remain liable to capture for any violation of neutrality they may have committed.

[Footnote 416: See below, § 348.]

[Footnote 417: See below, § 348_a_.]

It must be specially observed that, according to article 12, any man-of-war of either belligerent may demand from merchant ships, yachts, and boats, whatever the nationality of such vessels, the surrender of the wounded, sick, or shipwrecked who are on board.

According to the reservation of Great Britain, mentioned above in § 206, article 12 is understood "to apply only to the case of combatants rescued during or after a naval engagement in which they have taken part."

[Sidenote: The Religious, Medical, and Hospital Staff.]

§ 209. The religious, medical, and hospital staff of any captured vessel is inviolable, and the members may not be made prisoners of war, but they must continue to discharge their duties while necessary. If they do this, the belligerent into whose hands they have fallen has to give them the same allowances and the same pay as are granted to persons holding the same rank in his own navy. They may leave the ship, when the commander-in-chief considers it possible, and on leaving they are allowed to take with them all surgical articles and instruments which are their private property (article 10).

[Sidenote: Application of Convention X., and Prevention of Abuses.]

§ 209_a_. The provisions of Convention X. are only binding in the case of war between contracting Powers, they cease to be binding the moment a non-contracting Power becomes one of the belligerents (article 18). In the case of operations of war between land and sea forces of belligerents, the provisions of Convention X. only apply to forces on board ship (article 22). The commanders-in-chief of the belligerent fleets must, in accordance with the instructions of their Governments and in conformity with the general principles of the Convention, arrange the details for carrying out the articles of Convention X., as well as for cases not provided for in these articles (article 19). The contracting parties must take the necessary measures to instruct their naval forces, especially the personnel protected by Convention X., in the provisions of the Convention, and to bring these provisions to the notice of the public (article 20). The contracting Powers must, in case their criminal laws are inadequate, enact measures necessary for checking, in time of war, individual acts of pillage or maltreatment of the wounded and sick in the fleet, as well as for punishing, as unjustifiable adoption of military or naval marks, the unauthorised use of the distinctive signs mentioned in article 5 on the part of vessels not protected by the present Convention; they must communicate to each other, through the Dutch Government, the enactments for preventing such acts at the latest within five years of the ratification of Convention X.[418] (article 21).

[Footnote 418: Great Britain has entered a reservation against articles 6 and 21, but see above, § 124_b_, p. 164, note 1.]

[Sidenote: General Provisions of Convention X.]

§ 209_b_. Convention X. comes into force sixty days after ratification or accession on the part of each Power concerned (article 26). It replaces the Convention of 1899 for the adaptation to naval warfare of the principles of the Geneva Convention, but this latter Convention remains in force between such of its contracting parties as do not become parties to Convention X. (article 25). Such non-signatory Powers of Convention X. as are parties to the Geneva Convention of 1906 are free to accede at any time, and a Power desiring to accede must notify its intention in writing to the Dutch Government which must communicate the accession to all the contracting Powers (article 24). Each of the contracting Powers is at any time at liberty to denounce Convention X. by a written notification to the Dutch Government which must immediately communicate the notification to all the other contracting Powers; the denunciation, however, does not take effect until one year after the notification has reached the Dutch Government, and a denunciation only affects the Power making the notification (article 27). A register kept by the Dutch Minister of Foreign Affairs must record the dates of the deposit of ratifications, as well as the dates of accessions or of denunciations; each contracting Power is entitled to have access to this register and to be supplied with duly certified extracts from it (article 28).

VI

ESPIONAGE, TREASON, RUSES

See, besides the literature quoted above at the commencement of §§
159 and 163, Pradier-Fodéré, VIII. No. 3157, and Bentwich in _The
Journal of the Society of Comparative Legislation_, New Series, X.
(1909), pp. 243-249.

[Sidenote: Espionage and Treason.]

§ 210. Espionage[419] and treason do not play as large a part in sea warfare as in land warfare;[420] still they may be made use of by belligerents. But it must be specially observed that, since the Hague Regulations deal only with land warfare, the legal necessity of trying a spy by court-martial according to article 30 of these Regulations does not exist for sea warfare, although such trial by court-martial is advisable.

[Footnote 419: As regards the case of the _Haimun_, see below, § 356.]

[Footnote 420: See above, §§ 159-162.]

[Sidenote: Ruses.]

§ 211. Ruses are customarily allowed in sea warfare within the same limits as in land warfare, perfidy being excluded. As regards the use of a false flag, it is by most publicists considered perfectly lawful for a man-of-war to use a neutral's or the enemy's flag (1) when chasing an enemy vessel, (2) when trying to escape, and (3) for the purpose of drawing an enemy vessel into action.[421] On the other hand, it is universally agreed that immediately before an attack a vessel must fly her national flag. Halleck (I. p. 568) relates the following instance: In 1783 the _Sybille_, a French frigate of thirty-eight guns, enticed the British man-of-war _Hussar_ by displaying the British flag and intimating herself to be a distressed prize of a British captor. The _Hussar_ approached to succour her, but the latter at once attacked the _Hussar_ without showing the French flag. She was, however, overpowered and captured, and the commander of the _Hussar_ publicly broke the sword of the commander of the _Sybille_, whom he justly accused of perfidy, although the French commander was acquitted when subsequently brought to trial by the French Government. Again, Halleck (I. p. 568) relates: In 1813 two merchants of New York carried out a plan for destroying the British man-of-war _Ramillies_ in the following way. A schooner with some casks of flour on deck was expressly laden with several casks of gunpowder having trains leading from a species of gunlock, which, by the action of clockwork, went off at a given time after it had been set. To entice the _Ramillies_ to seize her, the schooner came up, and the _Ramillies_ then sent a boat with thirteen men and a lieutenant to cut her off. Subsequently the crew of the schooner abandoned her and she blew up with the lieutenant and his men on board.

[Footnote 421: The use of a false flag on the part of a belligerent man-of-war is analogous to the use of the enemy flag and the like in land warfare; see above, § 164. British practice--see Holland, _Prize Law_, § 200--permits the use of false colours. U.S. Naval War Code, article 7, forbids it altogether, whereas as late as 1898, during the war with Spain in consequence of the Cuban insurrection, two American men-of-war made use of the Spanish flag (see Perels, p. 183). And during the war between Turkey and Russia, in 1877, Russian men-of-war in the Black Sea made use of the Italian flag (see Martens, II. § 103, p. 566). The question of the permissibility of the use of a neutral or enemy flag is answered in the affirmative, among others, by Ortolan, II. p. 29; Fiore, III. No. 1340; Perels, § 35, p. 183; Pillet, p. 116; Bonfils, No. 1274; Calvo, IV. 2106; Hall, § 187. See also Pillet in _R.G._ V. (1898), pp. 444-451. But see the arguments against the use of a false flag in Pradier-Fodéré, VI. No. 2760.]

Vattel (III. § 178) relates the following case of perfidy: In 1755, during war between Great Britain and France, a British man-of-war appeared off Calais, made signals of distress for the purpose of soliciting French vessels to approach to her succour, and seized a sloop and some sailors who came to bring her help. Vattel is himself not certain whether this case is a fact or fiction. But be that as it may, there is no doubt that, if the case be true, it is an example of perfidy, which is not allowed.

VII

REQUISITIONS, CONTRIBUTIONS, BOMBARDMENT

Hall, § 140*--Lawrence, § 204--Westlake, II. pp. 315-318--Moore,
VII. §§ 1166-1174--Taylor, § 499--Bonfils, Nos.
1277-1277'1--Despagnet, Nos. 618-618 _bis_--Fiore, Code, Nos.
1633-1642--Pradier-Fodéré, VIII. Nos. 3153-3154--Nys, III. pp.
430-432--Pillet, p. 117--Perels, § 35, p. 181--Holland, _Studies_,
pp. 96-111--Dupuis, Nos. 67-73, and _Guerre_, Nos. 42-47--Barclay,
_Problems_, p. 51--Higgins, pp. 352-357--Lémonon, pp.
503-525--Bernsten, § 7, III.--Boidin, pp. 201-215--Nippold, II. §
28--Scott, _Conferences_, pp. 587-598, and in _A.J._ II. (1908),
pp. 285-294.

[Sidenote: Requisitions and Contributions upon Coast Towns.]

§ 212. No case has to my knowledge occurred in Europe[422] of requisitions or contributions imposed by naval forces upon enemy coast towns. The question whether or not such requisitions and contributions would be lawful became of interest through an article on naval warfare of the future, published in 1882 by the French Admiral Aube in the _Revue des Deux Mondes_ (vol. 50, p. 331). Aube pointed out that one of the tasks of the fleet in sea warfare of the future would be to attack and destroy by bombardment fortified and unfortified military and commercial enemy coast towns, or at least to compel them mercilessly to requisitions and contributions. As during the British naval manoeuvres of 1888 and 1889 imaginary contributions were imposed upon several coast towns, Hall (§ 140*) took into consideration the question under what conditions requisitions and contributions would be lawful in sea warfare. He concluded, after careful consideration and starting from the principles regarding requisitions and contributions in land warfare, that such requisitions and contributions may be levied, provided a force is landed which actually takes possession of the respective coast town and establishes itself there, although only temporarily, until the imposed requisitions and contributions have been complied with; that, however, no requisitions or contributions could be demanded by a single message sent on shore under threatened penalty of bombardment in case of refusal. There is no doubt that Hall's arguments are, logically, correct; but it was not at all certain that the naval Powers would adopt them, since neither the Institute of International Law nor the U.S. Naval War Code had done so.[423] The Second Hague Peace Conference has now settled the matter through the Convention (IX.) concerning bombardment by naval forces in time of war which amongst its thirteen articles includes two--3 and 4--dealing with requisitions and contributions. This Convention has been signed, although with some reservations, by all the Powers represented at the Conference except Spain, China, and Nicaragua, but China and Nicaragua acceded later. Many States have already ratified.

[Footnote 422: Holland, _Studies_, p. 101, mentions a case which occurred in South America in 1871.]

[Footnote 423: The Institute of International Law has touched upon the question of requisitions and contributions in sea warfare in article 4, No. 1, of its rules regarding the bombardment of open towns by naval forces; see below, § 213, p. 267. U.S. Naval War Code, article 4, allows "reasonable" requisitions, but no contributions since "ransom" is not allowed.]

According to article 3 undefended ports, towns, villages, dwellings, or other buildings may be bombarded by a naval force, if the local authorities, on a formal summons being made to them, decline to comply with requisitions for provisions or supplies _necessary_ for the _immediate_ use of the naval force concerned. These requisitions must be proportional to the resources of the place; they can only be demanded by the commander of the naval force concerned; they must be paid for in cash, and, if this is not possible for want of sufficient ready money, their receipt must be acknowledged.

As regards contributions, Convention IX. does not directly forbid the demand for them, but article 4 expressly forbids bombardment of undefended places by a naval force on account of non-payment of money contributions; in practice, therefore, the demand for contributions will not occur in naval warfare.

[Sidenote: Bombardment of the Enemy Coast.]

§ 213. There is no doubt whatever that enemy coast towns which are defended may be bombarded by naval forces, acting either independently or in co-operation with a besieging army. But before the Second Peace Conference of 1907 the question was not settled as to whether or not _open and undefended_ coast places might be bombarded by naval forces. The Institute of International Law in 1895, at its meeting at Cambridge, appointed a committee to investigate the matter. The report[424] of this committee, drafted by Professor Holland with the approval of the Dutch General Den Beer Portugael, and presented in 1896 at the meeting at Venice,[425] is of such interest that it is advisable to reproduce here a translation of the following chief parts:--

When the Prince de Joinville recommended in 1844, in case of war,
the devastation of the great commercial towns of England, the Duke
of Wellington wrote:--"What but the inordinate desire of
popularity could have induced a man in his station to write and
publish such a production, an invitation and provocation to war,
to be carried on in a manner such as has been disclaimed by the
civilised portions of mankind?" (Raikes, _Correspondence_, p.
367). The opinion of the Prince de Joinville has been taken up by
Admiral Aube in an article which appeared in the _Revue des Deux
Mondes_ in 1882. After having remarked that the ultimate object of
war is to inflict the greatest possible damage to the enemy and
that "La richesse est le nerf de la guerre," he goes on as
follows:--"Tout ce qui frappe l'ennemi dans sa richesse devient
non seulement légitime, mais s'impose comme obligatoire. Il faut
donc s'attendre à voir les flottes cuirassées, maîtresses de la
mer, tourner leur puissance d'attaque et déstruction, à défaut
d'adversaires se dérobant à leurs coups, contre toutes les villes
du littoral, fortifiées ou non, pacifiques ou guerrières, les
incendier, les ruiner, et tout au moins les rançonner sans merci.
Cela s'est fait autrefois; cela ne se fait plus; cela se fera
encore: Strasbourg et Péronne en sont garants...."

The discussion was opened again in 1888, on the occasion of
manoeuvres executed by the British Fleet, the enemy part of which
feigned to hold to ransom, under the threat of bombardment, great
commercial towns, such as Liverpool, and to cause unnecessary
devastation to pleasure towns and bathing-places, such as
Folkestone, through throwing bombs. One of your reporters observed
in a series of letters addressed to the _Times_ that such acts are
contrary to the rules of International Law as well as to the
practice of the present century. He maintained that bombardment of
an open town ought to be allowed only for the purpose of obtaining
requisitions in kind necessary for the enemy fleet and
contributions instead of requisitions, further by the way of
reprisal, and in case the town defends itself against occupation
by enemy troops approaching on land.... Most of the admirals and
naval officers of England who took part in the lively
correspondence which arose in the _Times_ and other journals
during the months of August and September 1880 took up a contrary
attitude....

[Footnote 424: See _Annuaire_, XV. (1896), pp. 148-150.]

[Footnote 425: See _Annuaire_, XV. (1896), p. 313.]

On the basis of this report the Institute, at the same meeting, adopted a body of rules regarding the bombardment of open towns by naval forces, declaring that the rules of the law of war concerning bombardment are the same in the case of land warfare and sea warfare. Of special interest are articles 4 and 5 of these rules, which run as follows:--

Article 4. In virtue of the general principles above, the
bombardment by a naval force of an open town, that is to say one
which is not defended by fortifications or by other means of
attack or of resistance for immediate defence, or by detached
forts situated in proximity, for example of the maximum distance
of from four to ten kilometres, is inadmissible except in the
following cases:--

(1) For the purpose of obtaining by requisitions or contributions
what is necessary for the fleet. These requisitions or
contributions must in every case remain within the limits
prescribed by articles 56 and 58 of the Manual of the Institute.

(2) For the purpose of destroying sheds, military erections,
depôts of war munitions, or of war vessels in a port. Further, an
open town which defends itself against the entrance of troops or
of disembarked marines can be bombarded for the purpose of
protecting the disembarkation of the soldiers and of the marines,
if the open town attempts to prevent it, and as an auxiliary
measure of war to facilitate the result made by the troops and the
disembarked marines, if the town defends itself. Bombardments of
which the object is only to exact a ransom are specially
forbidden, and, with the stronger reason, those which are intended
only to bring about the submission of the country by the
destruction, for which there is no other motive, of the peaceful
inhabitants or of their property.

Article 5. An open town cannot be exposed to a bombardment for the
only reasons:--

(_a_) That it is the capital of the State or the seat of the
Government (but naturally these circumstances do not guarantee it
in any way against a bombardment).

(_b_) That it is actually occupied by troops, or that it is
ordinarily the garrison of troops of different arms intended to
join the army in time of war.

The First Peace Conference did not settle the matter, but expressed the desire "that the proposal to settle the question of bombardment of ports, towns, and villages by a naval force may be referred to a subsequent Conference for consideration." The Second Peace Conference, however, by Convention IX.--see above, § 212, p. 265--has provided detailed rules concerning all the points in question, and the following is now the law concerning bombardment by naval forces:--

(1) The bombardment of undefended ports, towns, villages, dwellings, or other buildings is under all circumstances and conditions prohibited (article 1). To define the term "undefended," article 1 expressly enacts that "a place cannot be bombarded solely because automatic submarine contact mines are anchored off the harbour," but Great Britain, France, Germany, and Japan entered a reservation against this, since they correctly consider such a place to be "defended."

(2) Although undefended places themselves are exempt, nevertheless military works, military or naval establishments, depôts of arms or war material, workshops or plant which could be utilised for the needs of the hostile fleet or army, and men-of-war in the harbour of undefended places may be bombarded. And no responsibility is incurred for any unavoidable damage caused thereby to the undefended place or its inhabitants. As a rule, however, the commander must, before resorting to bombardment of these works, ships, and the like, give warning to the local authorities so that they can destroy the works and vessels themselves. Only if, for military reasons, immediate action is necessary and no delay can be allowed to the enemy, may bombardment be resorted to without previous warning, the commander being compelled to take all due measures in order that the undefended place itself may suffer as little harm as possible (article 2).

The first case in which naval forces acted according to these rules occurred during the Turco-Italian war. On February 25, 1912, Admiral Faravelli, the commander of an Italian squadron, surprised, at dawn, the Turkish gunboat _Awni-Illa_ and a torpedo-boat in the port of Beirut. These vessels were called upon to surrender, they were given until nine o'clock a.m. to comply with the demand, and the demand was communicated to the Governor and the Consular authorities. At nine o'clock the Turkish vessels were again, by signal, summoned to surrender, and as no reply was received, they were fired at and destroyed, but not without first having vigorously answered the fire of the Italians. Shells missing the vessels and bursting on the quay killed and wounded a number of individuals and damaged several buildings. The Turkish Government protested against this procedure as a violation of Convention IX. of the Second Peace Conference, but, provided the official report of Admiral Faravelli corresponds with the facts, the Turkish protest is unfounded.

(3) In case undefended places do not comply with legitimate requisitions, they likewise may be bombarded; see details above, § 212.

(4) In case of bombardments, all necessary steps must be taken to spare buildings devoted to public worship, art, science, or charitable purposes; historical monuments; hospitals, and places where the sick or wounded are collected, provided they are not at the time used for military purposes. To enable the attacking force to carry out this injunction, the privileged buildings, monuments, and places must be indicated by visible signs, which shall consist of large stiff rectangular panels, divided diagonally into two coloured triangular portions, the upper portion black, the lower portion white (article 5). Unless military exigencies render it impossible the commander of an attacking naval force must, before commencing the bombardment, do all in his power to warn the authorities (article 6).

(5) The giving over to pillage of a town or place, even when taken by assault, is forbidden (article 7).

VIII

INTERFERENCE WITH SUBMARINE TELEGRAPH CABLES